Which case won?

casea
The case for the driver
  • I pleaded guilty to both charges at the first available opportunity, so I am entitled to the maximum possible discount on the sentence.
  • At 73 years of age, I have no prior criminal convictions and am a person of good character.
  • I have a strong need for a driving licence and disqualification would cause me hardship. This includes social isolation, inability to work and therefore also financial hardship.
  • My daughter suffers from schizoaffective / bipolar disorder and I need to drive to Sydney each week to check on her welfare, otherwise her mental health deteriorates.
  • Indeed, a criminal conviction would disqualify me from the position of minister and would impact my ability to teach music and work with children and the elderly.
  • My 40-year career as a Justice of the Peace would be over if I have a criminal conviction.
  • I have gained insights into my offending behaviour by completing a traffic offender programme.
  • I am filled with remorse and am very sorry for my actions.
caseb
The case for the prosecution
  • A section 10 non-conviction is far too lenient in the circumstances, as it would mean that the driver suffers no penalty at all other than the public acknowledgment of her guilt.
  • The offence is not trivial in nature, as it carries a maximum penalty of nine months in prison. Indeed, the injuries to the victim are extremely serious.
  • There was no environmental impediment - the accident occurred in daylight, the road was level and dry and there were no other vehicles in the intersection.
  • There is no evidence of the driver being affected by mental or medical conditions.
  • The argument regarding inability to work and consequent financial hardship is irrelevant, because loss of income due to the loss of a driving licence is one of the ordinary consequences of conviction for an offence of this nature.
  • In any case, there is no evidence before the court that the driver will be unable to continue her work within her church or will be unable to teach music to children due to the inability to obtain a police clearance.
  • The hardship that will be caused to the appellant’s daughter cannot be regarded as exceptional, as she is assisted to a satisfactory level by a community mental health team.
  • The driver’s driving record is unimpressive. Of the 18 driving offences she has committed since the year 2000, 16 have been for speeding, which suggests a lack of commitment to public safety.
  • Even though there are strong subjective factors in the driver’s favour, they are not enough given the seriousness of the offence.

So, which case won?

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Case A Case B

Case B won. You were right!

How people voted
a23%
b77%

Expert commentary on the court's decision

Mark WarrenSolicitor
“In considering whether it can deal with an offence without recording a conviction, the court has to take into consideration what are known as subjective factors. The combined effect of the subjective factors favourable to the driver must then be measured against the objective seriousness of the offence.”
District Court dismisses appeal and confirms convictions and penalties

In the case Babineau v R [2016] NSWDC 354, the appeal was dismissed and the convictions and penalties confirmed.

The appeal was heard on 17 November 2016 by Chief Magistrate Henson sitting as a District Court judge. The case sets out the factors the court takes into account in considering whether a section 10 non-conviction good behaviour bond is appropriate.

His Honour’s judgment is considered to be the current guideline on what factors the court will consider in exercising its discretion under section 10, especially for serious traffic offences.

Subjective factors and section 10 submissions

In considering whether it can deal with an offence without recording a conviction, the court has to take into consideration what are known as subjective factors.

These are set out in Section 10 (3) of the Crimes (Sentencing Procedure) Act 1999. They are:

  • The person’s character, antecedents, age, health and mental condition
  • The trivial nature of the offence
  • The extenuating circumstances in which the offence was committed
  • Any other matter that the court thinks proper to consider.

In the case of traffic offences, the court will also consider a person’s need for a licence, participation in counselling or traffic offender education programs and their driving and criminal history.

Another factor taken into consideration is when the plea of guilty was entered. If it is entered at the earliest available opportunity, the offender is entitled to a 25% discount on sentence.

Genuine remorse and contrition are also persuasive factors when seeking leniency.

To what extent can courts show leniency for good character?

Despite the fact that the driver, Ms Martha Babineau, was regarded by the court as a person of prior good character, caselaw suggests that in serious traffic matters such as this, courts have to be careful in showing leniency for good character “to avoid giving the impression that persons of good character may, by their irresponsible actions… take the lives of others and yet receive lenient treatment” (R v MacIntyre [1988] 38 A Crim R 135 at 139).

It was also evident to the judge that Ms Babineau was remorseful and sorry for her actions and that her conduct had “weighed heavily upon her”.

Driver’s remorse and prospects of rehabilitation

The appellant had also completed the Traffic Offender Programme and from that gained insights into her offending behaviour. These included how saddened she was at causing an accident and injuring another human being and how her failure to properly manage her motor vehicle had impacted on the life of someone else.

This was set out in a letter she wrote to the court. As a result the judge was satisfied that Ms Babineau had genuine prospects of rehabilitation.

The court then had to consider the combined effect of the subjective factors favourable to the appellant and measure them against the objective seriousness of the offence.

Subjective factors favourable to the driver deemed to be insufficient

The judge determined that even though there were strong subjective factors favourable to Ms Babineau, they were not enough. The offence was too serious to warrant a non-conviction under section 10. He stated:

Deterring the commission of offences which involve a threat to public safety would effectively be undermined where one section of the broader community is dealt with in an extremely lenient manner simply to maintain the use of a licence while others were not.

In addition, the judge found that Ms Babineau’s driving history did not assist her, as the numerous speeding fines she had accumulated in recent years reflected “a less than appropriate commitment to public safety”.

The judge pointed out that general deterrence (deterring the wider community) and specific deterrence (deterring the offender) would be “almost completely ineffectual” if the penalties set down by parliament were rendered secondary to the personal wishes of an offender.

Would a criminal conviction impact on the driver’s ability to work?

On the question of a criminal conviction impacting Ms Babineau’s employment, the judge stated that there was no evidence before the court that this would happen.

It is also interesting to note that in the case of working with children checks, the legislative requirements state that a conviction “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. (See the Child Protection (Working with Children) Act 2012.)

Would the driver’s loss of licence cause exceptional hardship to her daughter?

The court then considered in detail the submission concerning how a loss of licence would impact on Ms Babineau’s daughter, that is, hardship to third parties.

There was evidence from the Northern Sydney Local Health District and a doctor that confirmed the daughter’s diagnosis and how she was assisted by her mother visiting her regularly. There were concerns raised by her case manager that the daughter’s care “may be compromised” if her mother could not visit her regularly.

While the judge accepted this proposition as likely, he noted that the Community Mental Health team at Royal North Shore contributed significantly to the daughter’s assistance and management. He stated:

Harsh though it may seem… there are arrangements in place to assist the appellant’s daughter and which appear to operate to a satisfactory level. I have difficulty against that background arriving at a finding that the hardship that will be caused to the appellant’s daughter ought to be regarded as exceptional…

Courts would be doing less than their duty, especially where retribution, deterrence and protection of society are the predominant considerations if they place excessive emphasis on an offender’s personal circumstances to the exclusion of those in society in general.

Severity of the victim’s injuries taken into account

A final aspect to the appeal and the consideration of a section 10 non-conviction was how serious the offending was and the severity of the victim’s injuries. The court determined that the objective seriousness of the offending was above the middle range and the injuries to the victim were “extremely serious”.

Quoting the judgment in R v Mauger [2012] NSWCCA 51, the judge stated:

Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of Section 10 decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence.

The judge concluded by saying: “If the impact of the crime on the victim, general deterrence and denunciation are to have practical meaning and effect they cannot simply be ignored because of the consequences of conviction”.

Section 10 non-conviction bonds soon to be replaced by Conditional Release Orders (CRO)

Author’s note: Section 10 non-conviction bonds will soon be replaced by Conditional Release Orders (CRO) as part of a range of changes to sentencing options in NSW. They will be available for less serious offences.

CROs can be imposed with or without conviction. The court will also be able to impose conditions such as supervision, non-association requirements and place restrictions. The court can also impose a conviction on a CRO if appropriate. CROs can be imposed for up to two years.

For further information, please see the NSW Justice web page on sentencing reform.

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